Imagine a person with great political authority who is known to have a grudge against you began an investigation looking for reasons to indict you. That person interviewed only people who were hostile to you. Imagine further that you were not allowed to see the evidence, to cross-examine witnesses, to bring your own evidence and witnesses involved in the matter, to have an impartial judge and jury, or to appeal the decision.
How would you feel? Would this seem fair?
Besides violating the most precious rights enshrined in our Constitution’s Bill of Rights (the Fifth, Sixth, and Seventh Amendments)—rights that go back 800 years to the Magna Carta in England, protecting citizens from arbitrary governmental power—these legal principles and procedures are seen as the only way to arrive at the truth and fair judgment in a case.
The “adversarial system,” rules of evidence, and hearing from all sides long have been understood as the only way to come to even a semblance of an accurate conclusion. Everyone has an interest in the preservation of this judicial system because whenever the government’s actions can affect one’s life, liberty, property, reputation, and future position, “due process of law” becomes the only impediment to arbitrary rule.
When one finds one’s own life on the line, judicial norms become highly relevant and important. Those who, for mere political reasons, would violate these well-established legal rules should at least consider how important it would be to them if ever the tables were turned. They would then appreciate these judicial safeguards.
This idea that “freedom” leads to knowledge and progress is part of what the Founders established, which Alexis de Tocqueville described so well in Democracy in America. Americans used to know that academic freedom, where all perspectives are debated, leads to the discovery of truth, the cultivation of reason, and the advancement of human knowledge.
Similarly, religious freedom, where liberty of conscience is respected, leads to sound doctrine and moral principles. Freedom in markets led to competition in business. In turn, that led to invention, innovation, and prosperity. As we need freedom in all of these areas, our legal system also requires the freedom that comes from hearing and examining all evidence, persons involved, and critical deliberation leading to fair, just, truthful decisions. It is not a luxury or a triviality.
The Value of Due Process
Lately, I have been reading Sir John Mortimer (creator of the English barrister “Rumpole of the Bailey”) and his memoir, Clinging to the Wreckage. He explains how the average Englishman has come to see the British legal tradition as a giant waste of time, an inconvenience, and an expensive frivolity. Perhaps that is so because now we find Britain is busy abolishing trial by jury, freedom of speech and other “trivialities.” Should we follow our British cousins in this?
People don’t quite realize the value of due process until they are indicted. At that point, an open, complete, careful procedure becomes pretty important in the face of fines, imprisonment, and loss of reputation and position. Only then, personally, immediately, does the presumption of innocence—“innocent until proven guilty”—make sense. Then the specter of arbitrary state power, police-state tactics of surveillance, secrecy, and interrogation show the horror of the loss of the rule of law. The Soviet Union and Nazi Germany give recent examples of what life is like under such a regime.
What the Democrat-controlled House is doing now to Trump sets a dangerous precedent for violating the due-process rights of all Americans. When hearsay, prejudice, emotional appeals, and dishonest motives replace cool, objective examination of facts in an impartial manner by opposing sides, we are headed for disaster.
Even a slight deviation from judicial standards and honesty quickly establishes an atmosphere of suspicion and fear. Only a few have to be unfairly prosecuted for the whole population to submit in terror to the arbitrary all-powerful state.
This kind of thing, just like arbitrary speech codes on American campuses, needs to be stopped now if we have any chance of restoring faith in our institutions.
If this impeachment farce reaches the Senate for trial, during which partisans will attempt to corrupt the process further, we are likely to see a kind of “chilling effect” on our politics as we have seen in speech on campus. Just as punishing a few for “offensive speech” leads to “self-censorship” and a lack of genuine inquiry, this travesty of justice will lead to corruption of the entire judicial system and the truths and democracy it protects. The Democrats’ congressional charade is, if not quite clearly illegal, at best “un-American,” as constitutional law scholar Stephen Presser has put it.
The best historical precedent for this misconduct is that of President John Adams and the Federalist Congress in the late 1790s, when, in passing the Alien and Sedition Acts for what surely seemed like vital political reasons to them, they ended up violating fundamental rights of free press, free speech, and due process of law. The result was Adams, one of our nation’s preeminent founders, losing the presidency to Thomas Jefferson in 1800 and the Federalists collapsing as a politically relevant party.
The modern Democratic Party may face a similar and deserved fate if it doesn’t reform. As a firm believer in the two-party system, I hope the Democrats do not continue on this path to self-destruction.